Pages

Second Amendment to the U.S. Constitution - Bill of Rights

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

Preservation and Proposition

Our mission is to document the pivotal Second Amendment events that occurred in Frontier Mercersburg, and its environs, and to heighten awareness of the importance of these events in the founding of our Nation.

We are dedicated to the preservation of the place where the Second Amendment was "born" and to the proposition that the Second Amendment (the "right to bear arms") is the keystone of our Liberty and the Republic.

Thursday, May 8, 2014

Nothing in the Constitution prevents private gun ownership, or reasonable regulation of guns. The balance is a matter of politics.

By Jerry Large - 5/8/2014

Related

Seattle Times staff columnist

Related

History, politics and law are all tangled up in contemporary court interpretations and public understanding of the Second Amendment, and politics is the greater part of the mix these days.

Last week, I wrote that we’ve so misread the amendment that maybe we ought to get rid of it. That’s certainly not on the horizon, but the idea drew a strong response and suggested to me that a review of the amendment’s history might be helpful. (Some of the responses also reinforced my belief there are many people who should not be allowed anywhere near a gun. What does racist name calling have to do with gun rights anyway?)
One theme that ran through comments supportive of unrestricted gun-ownership rights was that it is necessary for individuals to own guns to protect themselves against both crime and the U.S. government, and that the framers of the Constitution intended for the amendment to protect that individual right.

That’s a new way of reading the amendment.

I heard from Michael Schein, an attorney who handles appeals and who taught American legal history for 15 years at the University of Puget Sound and Seattle University.

Don’t blame the framers, he wrote. “For 217 years, the law under the 2nd Amendment was that it only protected possession or use of a firearm by ‘well-regulated militia’ forces. ...” It contained no right of personal self-defense until 2008, when the Supreme Court in a 5-4 vote brought that interpretation to its ruling in District of Columbia v. Heller, which limited the District’s gun-regulation law.

Wednesday I called Schein, and we talked about the amendment’s history and current interpretation. “It’s heavily politicized and wrapped up in people’s emotions, so it’s difficult to get to the facts underlying it in any objective way,” he said.

The Constitution was written to create a more effective federal government, but some people worried the government would trample on the rights of states and individuals. The Bill of Rights was intended to mollify them and make ratification of the Constitution possible. Some were particularly concerned that the federal government would form a standing army, and they wanted assurances that state militias would be in a position to fight against such an army if it came to that.

James Madison was tasked with drafting the amendments. Some of the states had asked for a personal right in one amendment, but he didn’t include that. Instead he used a version of Virginia law that dealt with militias.

The final version of the Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

For most of the country’s history, the Second Amendment rarely came up, and when it did, courts didn’t see it as protecting an individual right.
.
Also courts interpreted the Bill of Rights as restricting only the federal government until the Civil War, Schein said.

After the Civil War, Congress realized some states weren’t guaranteeing the rights of all citizens. The 14th Amendment made states also accountable for ensuring the rights of citizens. It also was intended to protect the right of formerly enslaved Americans to own guns for personal defense.

The Supreme Court in 2008 ignored previous rulings involving the Second Amendment. The majority reinterpreted the significance and meaning of the first four words, and it did so because of its political leanings, which is not uncommon in the court’s history.

“Constitutional law in America is a form of expression of politics,” Schein said. A ruling can’t ignore politics, but it shouldn’t be driven by politics, he said. He believes the Heller opinion was driven by politics. “The intent of the framers of the Second Amendment is stated in the preamble of the amendment, ‘a well-regulated militia.’

“The Supreme Court” he said, “has changed that meaning for political purposes based on history that no reasonable historian agrees with.”

I’ve just read a new book by Michael Waldman, president of the Brennan Center for Justice at New York University School of Law. The book does a great job of exploring the history of the amendment. It’s “The Second Amendment: A Biography,” and will be in bookstores beginning May 20.

Schein said that because the ruling in Heller was 5-4, it’s always possible a change in the court’s makeup could bring a change in interpretation of the amendment, but even without that, there is room for regulation by state and local governments that want to reduce bloodshed involving guns.

Gun regulation is actually enshrined in our history, he said. Lots of communities regulated firearms. Tombstone, Ariz. restricted the carrying of deadly weapons in town, and before that, Boston had a law that people couldn’t carry a gun loaded with powder into a building.

Just Tuesday, the Tacoma City Council passed an ordinance requiring background checks on all gun sales at gun shows on city property.

With or without the Second Amendment, nothing in the Constitution prevents private gun ownership, or reasonable regulation of guns. The balance is a matter of politics.

No comments:

Post a Comment

Save the Birthplace of Our Gun Rights - Donate Here

It All Started Here . . .

Frontier Mercersburg in 1765 was the "birthplace" of the right we now refer to as "the Second Amendment", or, "the right to bear arms". It was here that individuals for the first time, some would say divinely, embraced the link between "Life and Liberty". . . and struck the first blow for Freedom.

Historically the right to bear arms goes back even before our founding as a nation to the Glorious Revolution of 1689 when William III agreed to the English Bill of Rights. If one can look at revolution like a volcanic eruption in nature, you understand that often from the destruction come the seeds of new human values and beliefs. In this case the independence of the human spirit, the right to know God for oneself, and to trust your conscience was hard won in this revolution of the human soul.

One crucible begets the necessity for another and on the frontier in America the right to defend ones religious beliefs was becoming the right to participate in the decisions of government that impact my "self". Freedom of the soul was becoming freedom of the heart and mind. Smith's Rebellion began as an act they justified under the rubric of defending oneself because government had failed in its obligation to protect Life, Liberty and Property. This was the first assertion of this principle aimed directly at British Military Authority as well as the incompetent government of John Penn - anywhere in the colonies.

In the end, Smith's Rebellion was the first armed resistance against British Military Rule leading up to the American Revolution. It was the first American triumph over the best military force in the world. It was the first time upon defending oneself that Americans had proclaimed we can rule ourselves.

It would be ten years before the battles at Lexington and Concord.

...Let Them Take Arms

The "Right to Bear Arms" . . .or 2nd Amendment is one of the most discussed and contentious of all the amendments of the Bill of Rights. It is, in fact, the only amendment that contains not only the seeds but the actual instruments of the revolution itself. Further, it gives real affirmation to Thomas Jefferson's quote . . .

"God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. ... And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure."

It is for this reason, if no other, that the Government and its functionaries vociferously assail and obfuscate the text of this simple assertion. More, it is for this reason, and in the face of the perennial onslaught that its defense and affirmation is essential to the survival of the republic.

Frontier Mercersburg & The Justice William Smith House

The frontier town of Mercersburg, PA. in the 1760's, although typical of many settlements along the Appalachian Mountains played a pivotal role in the creation of what was to become the "Bill of Rights".

Frontiersmen like James Smith and the Black Boys, many of whom were inhabitants of the Mercersburg environs, were early participants in a series of conflicts with the British government that established principles the eventually lead to the inclusion of the "right to bear arms" in the Bill of Rights.

Much of the focus, centers on the domicile (and likely place of business) of Justice William Smith.